Comments on: TORT REFORM http://www.outsidethebeltway.com/archives/tort_reform/ Online Journal of Politics and Foreign Affairs Fri, 27 Nov 2009 04:13:18 -0600 http://wordpress.org/?v=2.8.5 hourly 1 By: April http://www.outsidethebeltway.com/archives/tort_reform/comment-page-1/#comment-1208 April Wed, 31 Dec 1969 18:00:00 +0000 /?p=1698#comment-1208 While I appreciate the suggestion that a crackdown on frivolous suits is needed, Edwards needs to rethink his suggestions. For example, requiring an attorney to swear that he has an expert at the ready before filing suit is not feasible. In order to obtain the information necessary for an expert to determine whether malpractice has occurred, first one has to file suit. Only then can the parties engage in discovery. Even if such information were available without using the discovery techniques provided by the rules of civil procedure, Edwards has overlooked the effect of the statute of limitations on his suggestion. If an injured person has to wait to file suit until an attorney has enough information to be able to swear that he has an expert to attest to malpractice there is a substantial risk that his claim will be time-barred, especially since many states have a one-year statute of limitations for personal injury. Notwithstanding the foregoing, how does one define frivolous to begin with...and by the way, Rule 11 and other inherent powers of the court to sanction are already in place to deal with frivolous claims. While I appreciate the suggestion that a crackdown on frivolous suits is needed, Edwards needs to rethink his suggestions. For example, requiring an attorney to swear that he has an expert at the ready before filing suit is not feasible. In order to obtain the information necessary for an expert to determine whether malpractice has occurred, first one has to file suit. Only then can the parties engage in discovery. Even if such information were available without using the discovery techniques provided by the rules of civil procedure, Edwards has overlooked the effect of the statute of limitations on his suggestion. If an injured person has to wait to file suit until an attorney has enough information to be able to swear that he has an expert to attest to malpractice there is a substantial risk that his claim will be time-barred, especially since many states have a one-year statute of limitations for personal injury.
Notwithstanding the foregoing, how does one define frivolous to begin with...and by the way, Rule 11 and other inherent powers of the court to sanction are already in place to deal with frivolous claims.

]]> By: Jem http://www.outsidethebeltway.com/archives/tort_reform/comment-page-1/#comment-1209 Jem Wed, 31 Dec 1969 18:00:00 +0000 /?p=1698#comment-1209 The charge of collusion is easily made and rarely proven. Besides, the mathematics of probability (upon which actuarial science is utterly dependant) are invariant across regions of the country (or the world, for that matter). Thus, one would logically expect strong similarities in premiums--unless, say, the investment choices of the firms resulted in vastly different rates of return. Also, both the legal and medical professions are suffering credibility problems--neither does an adequate job of policing incompetence and malfeasance within its ranks. Attorneys who bring frivolous cases should be immediately and strongly sanctioned--disbarment is not too strong a penalty for multiple offenses. Incompetent doctors should be decertified. And both the American Bar Associations and the American Medical Association should support registries to prevent those deserving of sanction from simply hanging out their shingle in a new location in order to defeat the process. Finally, while the number of outrageous verdicts is relatively small, their presence forces the insurance industry to hedge its bets to guard against successful "lottery playing" by plaintiffs and lawyers. The lawyer's self-serving argument that "you can't put a value on human life", is exactly right--actual damages (costs and loss of income for some reasonable period--not a 100-year lifetime of astronomical earnings, but 10 years of the average family income) and punitive damages up to twice that amount paid into a fund to support worthy causes (including care for the victims) are sufficient. The lawyer should get a share as well, but never more than a quarter of what the average victim gets--the era where a Peter Angelos makes several million dollars for a couple dozen hours work, a la the tobacco settlement, should be over. --- The charge of collusion is easily made and rarely proven. Besides, the mathematics of probability (upon which actuarial science is utterly dependant) are invariant across regions of the country (or the world, for that matter). Thus, one would logically expect strong similarities in premiums--unless, say, the investment choices of the firms resulted in vastly different rates of return.

Also, both the legal and medical professions are suffering credibility problems--neither does an adequate job of policing incompetence and malfeasance within its ranks. Attorneys who bring frivolous cases should be immediately and strongly sanctioned--disbarment is not too strong a penalty for multiple offenses. Incompetent doctors should be decertified. And both the American Bar Associations and the American Medical Association should support registries to prevent those deserving of sanction from simply hanging out their shingle in a new location in order to defeat the process.

Finally, while the number of outrageous verdicts is relatively small, their presence forces the insurance industry to hedge its bets to guard against successful "lottery playing" by plaintiffs and lawyers. The lawyer's self-serving argument that "you can't put a value on human life", is exactly right--actual damages (costs and loss of income for some reasonable period--not a 100-year lifetime of astronomical earnings, but 10 years of the average family income) and punitive damages up to twice that amount paid into a fund to support worthy causes (including care for the victims) are sufficient. The lawyer should get a share as well, but never more than a quarter of what the average victim gets--the era where a Peter Angelos makes several million dollars for a couple dozen hours work, a la the tobacco settlement, should be over.

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